Kerala HC in the case of K.U.Niyas Versus The Assistant Commissioner

Case Covered:

K.U.Niyas

Versus

The Assistant Commissioner

Facts of the Case:

The petitioner has approached this Court impugning Ext.P2 series of demand cum recovery notices issued to him under the GST Act. It would appear that Ext.P2 series of demand notices were issued to the petitioner, pursuant to assessment orders that were passed as early as on 25.11.2019 and 27.11.2019 respectively, for the assessment period April 2018 and May 2018 to May 2019. It is the case of the petitioner that the assessment orders were not served on him but, immediately on receipt of the demand notices, he took the necessary steps and filed returns for the said period, within thirty days from the date of receipt of the demand notices, so as to get the benefit of withdrawal of the assessment orders as contemplated under S.62 of the GST Act.

It is borne out from the statement filed on behalf of the respondents that the assessment orders were uploaded on the web portal of the department on the same dates, namely, 25.11.2019 and 27.11.2019 as they were passed. As per the provisions of Section 62 of the GST Act, the assessee had an option to file returns for the period concerned, within 30 days from the date of receipt of the orders passed on best judgment basis by the assessing authority, forgetting the orders withdrawn. In the instant case, while the assessment orders passed on a best judgment basis were uploaded on the web portal of the department on 25.11.2019 and 27.11.2019, the petitioner did not file his returns for the period covered by the said orders within 30 days from the said date. On the contrary, the returns pertaining to the said period were filed within 30 days from the date of receipt of the demand notices that followed the assessment orders.

Observations:

On consideration of the facts and circumstances of the case and the submissions made across the bar, I note that as per Section 169(c) and (d) of the GST Act the service of any communication to the e-mail address provided by an assessee at the time of registration, as also by making available the communication in the common portal of the department, is to be treated as an effective communication under the statute. I find, therefore, that the petitioner cannot wish away the fact that the assessment orders were brought to his notice on 25.11.2019 and 27.11.2019 respectively. Inasmuch as the returns filed by the petitioner for the period covered by the assessment orders were belated in that they were filed more than 30 days after the date of service of the orders on the petitioner via the web portal of the department, he cannot aspire for the benefit of withdrawal of the assessment orders as mandated under Section 62 of the GST Act. The Writ Petition in the challenge to the assessment orders and demand notices therefore fails and is accordingly dismissed.

The Decision of the Court:

Taking note of the submission of learned counsel for the petitioner that he would require some time to prefer appeals against the assessment orders, I direct that recovery proceedings for recovery of amounts confirmed against the petitioner, by the assessment orders and demand notices impugned in the Writ Petition, shall be kept in abeyance for a period of six weeks so as to enable the petitioner to move the appellate authority through statutory appeals in the meanwhile.